The Becket Fund just filed a letter in the U.S. Court of Appeals for the Ninth Circuit explaining to its judges how a Supreme Court opinion last week should shape a pending case. Short, terse, straight to the point and with ironclad logic, Becket’s letter gives reason to hope the Ninth Circuit will rule in favor of religious liberty and the Apache people.
The government had argued before the Ninth Circuit that a congressional deal to swap land held as sacred to the Apache religion would somehow not constitute a “substantial burden” on the free exercise of their religion. This claim was maintained despite the deal turning the land over to foreign mining company, which plans to dig for copper and leave a hole as long as the Washington Mall and as deep as two Washington Monuments.
Becket’s letter told the Ninth Circuit that on Thursday, the Supreme Court ruled 8-1 in a case in which condemned prisoner John Henry Ramirez asked that his pastor be able to recite a prayer and touch him when he is to be put to death. What does this have to do with sacred land in Arizona? The Ramirez case upholds religious liberty by recognizing in a framework as narrow as an execution chamber that religion is substantially burdened when government actions make following one’s religious beliefs impossible.
Before, a district court had rejected Ramirez’s Religious Land Use and Institutionalized Persons Act (RLIUPA) claim because, it reasoned, Texas’s refusal to grant his request did not substantially burden his religious exercise. “But the Supreme Court reversed and ruled for the prisoner,” Becket wrote, “noting the substantial burden was so obvious that Texas had failed to even ‘dispute’ it before the Court.”
The government argued in the Apache case that no substantial burden exists if the government is “merely conducting its own affairs.” Yet the Supreme Court found a substantial burden on Ramirez’s free exercise of religion even within the strict execution protocol of the State of Texas, surely a good example of a state conducting its own affairs.
Becket writes that “the government hasn’t just made plaintiffs’ religious exercise more costly via penalties or denial of benefits. Rather, it has taken action that will preclude the exercise altogether – handing Oak Flat over to be physically destroyed, thus rendering the plaintiffs’ continued religious exercise there physically and objectively impossible.”
“That is a substantial burden.”
It is also a binding precedent that should spell good news for the Apache.
Houston Community College System v. WilsoN
The U.S. Supreme Court today unanimously held that an elected body censuring one of its members is not a violation of the First Amendment. In so doing, the Court correctly protected speech and political expression from heavy-handed judicial regulation.
The Court took up this case because a split panel of the U.S. Court of Appeals for the Fifth Circuit oddly concluded that a member of an elected board censured by his colleagues has a viable First Amendment claim.
David Wilson, one of nine trustees of the board of the Houston Community College (HCC) System, was publicly censured after what the Court described as years of escalating hostility that included lawsuits, a private investigator, robocalls and accusations by Wilson of ethical violations.
The HCC had enough and censured Wilson via a resolution calling his conduct “not only inappropriate, but reprehensible,” and imposed penalties rendering him ineligible for officer positions on the board and pulling his expense account. While the Fifth Circuit ultimately concluded that the penalties were not a problem, it was the criticism it bizarrely thought went too far and encroached upon Wilson’s First Amendment rights.
Wilson had tried to make a distinction between a mere reprimand, which does not impair speech, with a disciplinary censure, which he claimed did materially impair his freedom of speech. Justice Neil Gorsuch, writing for a unanimous opinion, found this was a distinction the justices “find hard to see.”
Justice Gorsuch noted that since colonial times, assemblies and elected bodies have been free to censure their members. In 1833, Justice Joseph Story observed that even the “humblest assembly” in the United States enjoyed the power to prescribe rules for its own proceedings.
Justice Gorsuch wrote: “Elected representatives are expected to shoulder a degree of criticism about their public service from their constituents and their peers – and to continue exercising their free speech rights when the criticism comes.” In other words, elected officials can’t claim to be free-speech snowflakes who can dish it out but not take it. As Justice Gorsuch aptly pointed out, the act of censuring David Wilson was, itself, speech.
Justice Gorsuch noted that this is a narrow ruling, leaving room for First Amendment considerations in other contexts. “When the government interacts with private individuals as sovereign, employer, educator, or licensor, its threat of censure could raise First Amendment questions. But those questions are not this one.”
Had the Court not corrected the Fifth Circuit, there would have been no end of litigation by aggrieved politicians. Judge Edith Jones, who dissented from the Fifth Circuit’s decision, had warned that the panel’s ruling “threatens to destabilize legislative debate, and invites federal courts to adjudicate ‘free speech’ claims for which there are no manageable legal standards.”
Now, as before, the best remedy to speech one finds objectionable is more speech, which no doubt David Wilson will provide and, in all likelihood, receive more of in return as well.
In today’s confirmation hearing for Judge Ketanji Brown Jackson, Sen. Mike Lee (R-UT) asked the Supreme Court nominee about her stance on viewpoint discrimination by online platforms. He asked Judge Jackson about Section 230 of the Communications Decency Act, which grants broad immunity to social media platforms for posts made by their users.
In so doing, Sen. Lee touched on the hot topic of the removal of posts and demonetization of content creators (seen most recently in the Twitter/ Babylon Bee controversy).
Sen. Lee asked: “Wouldn’t it be within Congress’s authority to condition a receipt and an availability of Section 230 immunity on those online interactive service providers operating as a public forum, not discriminating on the basis of viewpoint?” Plainly put, Sen. Lee was asking if Congress could put conditions for viewpoint protection in exchange for Section 230 immunity.
Though Judge Jackson’s answer was non-committal, the question perhaps says a lot about the state of mind of Senate Republicans. Instead of seeking to try to regulate the First Amendment rights of social media companies – likely to be struck down in court – there is a growing recognition that a workable balance might be reached in continuing Section 230’s benefits while protecting robust speech online from ham-handed “content moderation.”
Perhaps this is a sign that more senators are ready to sign on to the Platform Accountability and Consumer Transparency Act (PACT Act), co-sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD).
The PACT Act would require social media companies that wish to continue to enjoy Section 230’s immunity to give social media posters more transparency about content decisions, and an appeals process for censored content and individuals. It is a way to address free speech on the large sites that dominate the public discussion while respecting the First Amendment.
The New York Times ran an even-handed editorial denouncing threats to free speech from progressive cancel culture and conservative attempts to legislate speech in the classroom. For a surprising number of commentators, one of America’s largest newspapers taking a moderate stance in favor of free speech was a red flag. Critics from both the left and right denounced the Gray Lady for “both-sidesism,” highlighting the very social fissures the editorial describes.
Most notable are the results of recent poll commissioned by The Times Opinion and Siena College. It found:
The Times article is long, detailed, and worth reading. It is balanced and incisive, though with many debatable points. Overall, it does a good job of summing up that this crisis is largely the result of America’s culture and ideological wars, not the kind of government censorship one finds in Putin’s Russia.
The Times observes that “the old lesson of ‘think before you speak’ has given way to the new lesson of ‘speak at your peril.’” We are reminded that the letter of the First Amendment, which forbids official censorship, necessarily relies on a widespread spirit of tolerance. And free speech is further encouraged when we have curiosity about issues in which “the other side” might actually know something we don’t.
Proving Oscar Wilde’s dictum that irony is wasted on the stupid, more than 100 Yale Law students shouted, cursed, physically threatened, clapped and pounded on walls to silence a panel on civil liberties and free speech.
The March 10 event was a panel hosted by the Yale Federalist Society to bring together Monica Miller of the progressive American Humanist Association and Kristen Waggoner of the Alliance Defending Freedom (ADF). This progressive atheist and conservative Christian were at Yale to discuss Uzuegbunam v. Preczewski, a case in which the U.S. Supreme Court upheld 8-1 the ability of a Christian student to vindicate in federal court his right to proselytize on campus, even if he sought only nominal damages.
Had the Yale students listened, they would have heard Miller saying that without the Uzuegbunam ruling, her organization would not be able to protect the speech rights of LGBT students.
Such distinctions were lost in the violent din. One protestor told a member of the Federalist Society that she would “literally fight you, bitch.” Student members of the Federalist Society were jostled as they attempted to leave the room. They were rescued by police.
It is past time for universities to do more than send an administrator in to such events to futilely plead for free speech. Any person who engaged in such behavior while at work would be fired. Any lawyer who brought these tactics to a court room would be escorted by the bailiff to jail. Given that Yale Law produces presidents, senators, justices, and judges, it is important to all Americans that it educate our future leaders to not threaten speakers.
An expulsion or two would probably work wonders.
Protect the First Foundation Files Amicus Brief Asking the Supreme Court to Uphold Rights of Healthcare Workers Fired for Religious Objections to Vaccine
Protect the First Foundation today asked the Supreme Court to hear the case of healthcare workers in New York State who were fired because of a religious objection to the coronavirus vaccine.
Some practicing healthcare workers object to receiving COVID-19 vaccines because of the use of fetal cells in the vaccines’ development process (though no such cells appear in the mRNA vaccines). Most states accommodate this small minority of Americans who have such religious objections to receiving the coronavirus vaccine.
New York State, however, is taking a different approach. When it issued a mandate for all healthcare workers to be vaccinated, the state broadened exemptions for those with medical concerns. But the state denied any accommodation for those with religious objections to the vaccine. It fired healthcare workers with such objections and cut them off from access to unemployment benefits.
The Case and the Brief
New York argues that the medical exemption is “not comparable” to the religious exemption because it “advances rather than undermines” the state’s interest in “protect[ing] healthcare workers themselves.” The Second Circuit, in upholding New York’s refusal to allow a religious exemption, held that the medical exemption did not trigger strict scrutiny because vaccinating “a healthcare employee who is known or expected to be injured by the vaccine would harm her health and make it less likely she could work.”
The Protect the First Foundation countered:
“But that reasoning overlooks the fact that terminating religious objectors also harms the state’s interest in preventing staffing shortages and keeping healthcare workers on the front lines. More fundamentally, it ignores that the medical exemption undermines the government’s core asserted interest in ‘prevent[ing] the spread of COVID-19 in healthcare facilities among staff, patients, and residents.’”
The brief noted that as far back as Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah in 1993, the Supreme Court recognized that laws discriminate against religious practice when they “fail to prohibit nonreligious conduct that endangers [the government asserted] interests in a similar or greater degree” to religious conduct.
The core issue in this case traces its root to a 1990 Supreme Court decision in Employment Division v. Smith. Under that decision, and later cases, laws that incidentally burden religion are not subject to strict scrutiny—the standard under which laws burdening other constitutional rights are reviewed—if they are neutral and generally applicable. The Supreme Court has made clear that laws are not generally applicable when they forbid religious conduct while allowing secular conduct that undermines the government’s interests in a similar way.
Protect the First Foundation observed:
“As the Second Circuit recognized, allowing unvaccinated workers invoking the medical exemption to remain on the front lines presents ‘comparable risks of both contracting and spreading COVID-19,’ regardless of ‘the reason that the employee is unvaccinated’ … What’s more, firing healthcare workers with religious objections undercuts the state’s asserted interest in preventing staffing shortages.”
Protect The 1st will report on further developments if the Supreme Court adopts this case.
Many conservatives and moderates alike are critical of the direction academia has taken in recent years.
At Skidmore College, one can take “The Sociology of Miley Cyrus: Race, Class, Gender, and the Media.” At Oberlin, one can study “How to Win a Beauty Pageant,” (not actually a how-to, but an “analysis of the interplay of race, gender, class, sexuality and nation”). And at Occidental College, one can take a course that delves into "phallogocentrism."
While studies of the U.S. Constitution and what used to be called “civics” languish, universities and colleges are elevating courses once considered fringe electives and bringing closer to the center of their liberal arts programs. Many observers take a skeptical view of such gender studies courses that analyze society through “gender hierarchies” and gender inequalities in ways that seem increasingly rigid, ideological, and abstruse.
Whatever one’s view of these courses and the philosophies they represent, however, Protect The 1st recommends that politicians resist the impulse to restrict academic freedom at public institutions with broad-brush directives. The Wyoming state Senate helped crystalize this question by recently passing a bill that stipulates:
“As a condition of these appropriations, the University of Wyoming shall not expend any general funds, federal funds or other funds under its control for any gender studies courses, academic programs, co-curricular programs or extracurricular programs.”
Wyoming senators are trying to perform the delicate task of challenging academia’s prevailing culture with a sledgehammer where a scalpel is required. Such a heavy-handed approach is sure to backfire, spurring a rebellion by professors angered by an encroachment on their freedom to teach. State legislatures and the taxpayers they represent certainly have a right to influence the content of state-supported teaching. But when the directives veer into viewpoint discrimination and First Amendment rights, the result will only be fruitless litigation.
This point is clear in the Wyoming bill’s restrictions on student organizations, which run afoul of Rosenberger v. Rector and Visitors of the University of Virginia. In that opinion, the Supreme Court held that it is unconstitutional to deny funding to Christian student organizations on the basis of viewpoint. The Wyoming law is sure to be slapped down under Rosenberger because it effectively bans support for student organizations and speakers with particular viewpoints on gender-related issues.
State legislators have every right to air this debate. Universities and colleges should not be immune to questioning. Ultimately, however, there is only one effective route forward for better curricula – long, arduous, criticism, debate, and reform within the academy.
In 1990, in a case called Employment Division v. Smith, the Supreme Court famously held that the government can substantially burden religious beliefs and exercise as long as it does so in a way that is both neutral and generally applicable. In the intervening years, the lower courts have struggled to define what makes a law generally applicable. Is a law generally applicable, for example, if it allows some secular exemptions? What about an administrative rule that targets and forbids religious conduct, while permitting otherwise identical secular conduct? The Supreme Court has a chance to answer that latter question in a case now pending before it, Dr. A. v. Hochul.
The case originated in New York. The state issued a mandate for all healthcare workers to be vaccinated against Covid-19. It provided exemptions to healthcare workers who sought medical accommodations, but denied all requests for religious accommodations. After firing healthcare workers with religious objections to the vaccine, it cut them off from any access to unemployment benefits.
Remarkably, the Second Circuit Court of Appeals held that the vaccine mandate was generally applicable despite the fact that it allows for medical exemptions. How could this be? It isn’t like the risk of transmission is any lower for those who are unvaccinated for medical reasons than it is for those who are unvaccinated for religious reasons. And both groups seek the same accommodation—the ability to keep their jobs despite their vaccination status.
To us, it seems clear that the Second Circuit got things wrong. A law that applies differently to religious objectors than it does to medical objectors is, by definition, not generally applicable. And as Justice Kavanaugh explained just last year, a law fails Smith’s requirement of general applicability if a “single secular analog is not regulated.” A majority of the Justices in Tandon v. Newsom, a case heard on the Court’s expedited emergency docket, made things just as clear: heightened judicial scrutiny dooms a law if “any comparable secular activity” is treated “more favorably than religious exercise.”
Because the Second Circuit allowed the New York mandate to treat going to work unvaccinated for medical purposes differently than going to work unvaccinated for religious reasons, the Second Circuit departed from Tandon’s clear guidance.
Protect The 1st urges the Supreme Court to take up this case to clear up that misapplication of the law and to make Tandon’s rule clear in a case in the normal course, with full briefing and oral argument. The Court should take this opportunity to apply serious constitutional scrutiny to New York’s selectively applicable vaccine mandate.
Concordia University Wisconsin is a private, Lutheran university in scenic Mequon, Wisconsin, fast by the western shore of Lake Michigan. It serves about 4,000 undergraduate students with 78 majors and minors, as well as postgraduate students with programs that include pharmacology and nursing. Though a private, religious institution, CUW upholds academic freedom in its contracts with professors and in its faculty handbook.
But a funny thing happened on the way to the academic forum …
Dr. Gregory P. Schultz, a full professor of philosophy, who has lectured at Oxford and Cambridge Universities, discovered the limited boundaries of CUW’s academic freedom when he dared to write and post a spirited and eloquent paper that critiqued “systemic Woke-ism” and “Woke Dysphoria” as an “educational heresy” that endangers CUW’s mission. He ridiculed Woke philosophy as illiterate and illiberal in its unwillingness to allow any questioning of its tenets. Dr. Schultz worried that fashionable beliefs were leading this religious school to “cultural abandonment of the gospels.” And he dared question the standards by which the university is conducting its search for a new president.
We owe it to our friends at the Foundation for Individual Rights in Education (FIRE) for telling us what happened next. On Friday, Feb. 18 Schultz received an email from the university’s president requesting that he attend a meeting that afternoon to discuss the article. Schultz responded that he had missed the email because he was teaching classes and visiting students during his posted office hours. He was on his way to teach his third class of the day and offered to meet the next Monday.
“Request denied,” wrote the president. “I will see you at 4 p.m., Greg.” Schultz did not see the response because he was teaching. That same day Schultz was suspended pending an investigation into multiple allegations of misconduct stemming from the article, including “conduct unbecoming a Christian.”
CUW relieved Schultz as a teacher, from visiting the campus, and prohibited him from any contact with students or his faculty colleagues. In one request worthy of the Inquisition, the president demanded that Dr. Schultz “recant” his article or face the modern form of burning at the stake — termination.
As FIRE noted: “Suspension is a punishment, and not a light one, entitling Schultz to due process before it is imposed. Schultz is unable to teach his classes or even communicate with his students and other faculty members. Each day of his suspension that goes by is a further disruption to Schultz’s career as an educator and to his relationships with his students and colleagues.”
CUW’s own policies require that a faculty member accused of misconduct receive proper notice of the charges, a chance to respond, the formation of a review committee and a formal hearing. Fortunately, the legal eagles at FIRE are on the case working for the restoration of Gregory Schultz’s speech rights.
Make no mistake, Dr. Schultz’s paper was a tart polemic, sure to insult those in favor of imposing a progressive agenda at CUW. But his invective remained high-toned and erudite. He did not engage in ad hominems or puerile name calling. Protect The 1st would only add the following thought experiment: Imagine if a professor at CUW had written a similarly sharp invective, but this time condemning CUW for being a citadel of racism and gender discrimination. Does anyone think that such a polemic would cause administrators to immolate a career?
But if that did happen, rest assured, First Amendment advocates from FIRE to PT1st would come to that professor’s defense.
Two pending cases ask Supreme Court to decide if attorneys can be forced to join state bar associations
This month, the Supreme Court will meet to consider whether to hear two cases asking whether a state can constitutionally require its attorneys to join and fund a state bar association.
The cases, McDonald v. Firth and Schell v. Darby, are the latest in a long line of cases where the lower courts have felt compelled by Supreme Court precedent to ignore the First Amendment harms flowing from compelled speech and association.
We hope that the Court will decide to hear one or both of those cases. Both present the Supreme Court with the opportunity to ensure that attorneys are not put to the coercive choice of, as the Court said in the recent case Janus v. AFSCME, “betraying their convictions” and earning a living.
There are many activities that give rise to this coercive choice. Among them, mandatory state bars advance controversial political and ideological positions by filing briefs, by lobbying, or even by taking official positions on behalf of their members.
In the middle of a recent ballot initiative to change the way that Utah chooses judges, for example, the mandatory Utah State Bar issued a statement opposing such changes, emphasizing that the Bar “fully supports Utah’s current merit system as the best way to select a competent, independent judiciary.” In a different—but related—context, the State Bar of Michigan in 2013 actively campaigned for “all payments for communications referring to judicial candidates” to be “reportable to the Secretary of State.” It should come as no surprise that members of those bars, like members of every group, differ on the proper resolution of those issues.
McDonald and Schell thus ask, at bottom, two questions. The first is whether attorneys give up—as a precondition to getting a law license—their right to fund only that legislation or those messages with which they agree. The answer to that question should be no. But the second question is equally important and should similarly be answered no. It asks whether—regardless of the funding question—attorneys can be forced to associate with groups with which they don’t want to associate, whether because of that group’s public positions or for, frankly, any other reason.
We’ll continue monitoring these cases and hope that the Supreme Court agrees to review them and, ultimately, protect the First Amendment rights of attorneys. In the meantime, for a broader picture of ways that mandatory bars act in ways that harm their members, you can read our brief in the McDonald case here.
Supreme Court seems likely to answer important First Amendment question differently than Judge Ketanji Brown Jackson
The Supreme Court heard oral argument last week in Egbert v. Boule asking whether people whose First Amendment rights have been violated by federal agents can seek monetary damages to remedy the violation even if Congress has never allowed such a case by statute.
Earlier this year, Protect the 1st filed a brief explaining why, in those circumstances, there should be some remedy available. Unfortunately, at oral argument, multiple Justices seemed skeptical about finding such an implied cause of action.
Justice Kagan explained that implied causes of action have been “basically a remedy for Fourth Amendment violations.” Justice Barrett expressed her belief that finding a First Amendment cause of action would be “difficult.” Justice Thomas asked why the Court should find any new cause of action given how the Court has “universally declined” to do so in “recent history.”
Justice Gorsuch followed the same line of reasoning. Justice Alito has never been a friend of causes of action untethered from a statute. Based on how oral argument went, we would guess that the Court will hold that there is no implied First Amendment cause of action.
The more interesting question is this: If Judge Ketanji Brown Jackson—President Biden’s choice to replace Justice Stephen Breyer—had already been confirmed, how would she vote?
Judge Jackson gave an answer to that question nearly ten years ago when she decided Patterson v. United States. That case began after Anthony Patterson was “arrested for using profanity in a public park.” Judge Jackson explained that “where … there is an allegation of retaliatory arrest in the absence of probable cause, the plaintiff has a viable First Amendment claim.” Jackson concluded “that Patterson's First Amendment . . . claim — which alleges that Patterson was arrested without probable cause and ‘solely on account of the content of his speech’ is actionable.” In other words, Jackson answered yes on a question the Supreme Court now seems poised to answer no.
Jackson’s Patterson opinion is just one reason why we are optimistic about Jackson’s historic nomination. The opinion shows that Jackson is willing to protect constitutional rights regardless of whether Congress has given its imprimatur.
While it is unfortunate that the current court seems unwilling to follow that path, Jackson’s voice on the court may well be what is needed to convince justices to expand the concept of implied causes of action in First Amendment claims in the future. We expect that Jackson will be swiftly confirmed and, if the Court gets things wrong when it decides the Egbert case, we hope that a Justice Jackson will be successful at convincing her new colleagues that her Patterson decision was rightly decided.
On Tuesday, a rowdy crowd inflicted a 45-minute heckler’s veto on constitutional scholar Ilya Shapiro for a poorly worded tweet.
Attempting to speak at a Federalist Society event at the UC Hastings College of the Law in San Francisco, Shapiro was confronted with the sharpest arguments these law students and protestors could muster:
“You’re a bald coward!”
“Freedom of speech, baby.”
“Remove him off the [effing] campus!”
And those were the eloquent ones.
In the past, heckled-cancelled speakers often surveyed the room and retreated. There was often an air of apology in their retreats, as if they agreed they should be cancelled. Shapiro defiantly remained standing at the podium for the duration of what would have been his talk.
To its credit, Hasting’s dean of academics tried to quell the crowd by telling them a law professor was going to confront Shapiro with questions about his tweet. But that would be dialogue, which would lack the self-righteous satisfaction of vitriolic and unrelenting denunciation. One wonders what the dean would do if students behaved this way in class? Give them all A’s? Actually let the teachers teach?
There is a sense that the wheel is turning and that campus speakers are not going to meekly accept such bullying and abuse. Let us hope that Georgetown University finds its courage and retains Shapiro as head of its Constitution Center.
After all, what could be a more teachable moment about the U.S. Constitution and the First Amendment?
PT1st’s Foundation SCOTUS Brief: The Constitution Protects Coach Kennedy in Multiple Ways Bremerton School District Violated the No Religious Test Clause
Protect The First Foundation filed an amicus brief today in the case of the “praying coach” now before the U.S. Supreme Court.
This case involves the suspension of football coach Joseph Kennedy by Washington State’s Bremerton School District for saying thirty-second prayers on the football field after games. Coach Kennedy initially prayed alone but allowed team members who asked to join him to do so.
The PT1st brief informs the Court that Coach Kennedy, in addition to being protected “twice over” by the First Amendment, is also protected by Article VI’s No Religious Test Clause.
The brief explains that the rights of the coach were violated by a lower court that held that his prayers amounted to government speech – an assertion that served to “misattribute and cheapen his speech.” PT1st corrects this view, noting that it is “factually wrong – and contrary to common sense – to attribute a public employee’s personal expression of individual faith to the government, even if that expression occurred on the job.”
The brief’s main contribution is that it shows the Justices that if personal expressions of religious faith are government speech when uttered by public employees, governments may be able to impose a “back-end” religious test that tells people of faith that they are not welcome in public employment. That, PT1st explained, is a “particularly harmful” message that, “[i]f left standing, … will … limit public employment to members of favored religions that demand no visible, public displays of faith, while denying employment to those whose exercise of religion needs to be overt and visible to others.”
PT1st explained that this would be a classic religious test: Just like the government cannot tell a would-be employee that she must forsake her beliefs as a condition of entering public employment, it cannot impose a requirement that she abandon religiously required expression as a continuing condition of employment after hiring her.
“For all these reasons, we are optimistic the Court will rule in favor of free speech and freedom of religious expression,” said Gene Schaerr, Protect The 1st general counsel. “At one time or another, a majority of the sitting Justices have expressed sympathy for protecting religious speech, and I hope that they do so again here.”
 Emphasis added.
Protect The 1st has stood fast to protect the First Amendment rights of Americans to the free exercise of religion – for Native Americans seeking to hold on to lands sacred to their worship, to the right of religious schools to participate in tuition assistance programs, to the right of a high school coach to pray after a game.
The First Amendment also protects us from the imposition of religion as well.
Balancing the free exercise clause of the First Amendment is a preceding clause that prohibits the establishment of a religion. It is instructive to see what a violation of that sort looks like.
A public high school in Huntington, West Virginia, sent students to the school’s auditorium in mid-morning. They were told to raise their arms and pray. An evangelical preacher told the students to give their lives over to Jesus and follow the Bible or else face going to hell.
This event, organized by the school’s chapter of the Fellowship of Christian Athletes, was supposed to be voluntary. But many students were told it was mandatory. At least one Jewish student tried to leave, only to be told by his teacher that he was locked inside. Later, nearly a dozen students and parents sued the local school board, superintendent and principal in federal court asking for $1 per plaintiff, attorneys’ fees and a permanent injunction against future proselytizing events.
To their credit, the school system superintendent and high school principal acknowledged that this event was not handled properly and would not be allowed to happen again.
“School authorities have said that the event was improperly handled and offered assurances that similar mistakes would not occur in the future,” said Rick Boucher, former Member of Congress and Protect The 1st senior policy advisor. “But this event is a teaching moment that demonstrates that the First Amendment – while assuring freedom to worship – also protects against compelled religion.”
Slockish v. U.S. Department of Transportation: Protect The 1st Takes a Stand for Religious Minorities
When the government widened U.S. Highway 26 in Eastern Oregon, it took care to protect wetlands and avoid encroaching on a tattoo parlor. But when it encountered The Place of the Big Trees, an ancient stone altar and grove of trees sacred to the Yakima Nation and the Confederated Tribes of Grand Ronde, the government deployed its bulldozers and destroyed the site.
After the destruction, the elders of these tribes appealed to the government to return the rocks that made up their altar and replant the medicinal plants they had uprooted. The U.S. District Court for the District of Oregon instead found that the U.S. Federal Highway Administration had not violated the religious rights of the tribes under the Religious Freedom Restoration Act (RFRA). A court panel further did not see that it had the authority, or a need, to attempt remediation.
Now the Protect The First Foundation is joining with the Jewish Coalition for Religious Liberty, the Sikh Coalition and the American Islamic Congress to stand up for RFRA and the rights of religious minorities. The coalition filed an amicus brief Tuesday urging the Ninth Circuit Court of Appeals to hear the case and consider ways to remediate and restore the site.
The coalition demonstrated that “when the government cannot grant a religious claimant’s ideal accommodation, it bears the burden of proving that there are no possible remedies.” As it stands, the message of the lower court and the government is, essentially, to like it or lump it.
With secular claims in the Ninth Circuit, the fact that a harm has been completed does not render it moot. The lower panel violated this precedent in creating a lower standard for religious plaintiffs than for secular plaintiffs. Simply put: No crying over spilled milk.
Overall, the panel shrugged off the law’s requirement that it explore other ways to rectify the injury the government inflicted.
The brief states: “If left standing, the panel decision would gut RFRA, turning it from a landmark ‘super statute’ – passed to provide robust remedies for religious believers like plaintiffs who are prevented from exercising their faith – to a statute only occasionally able to protect religious belief.”
Finally, somehow the lower court ruling found that it lacked the authority to craft a case-specific remedy as required by RFRA. In so doing, the panel created a precedent that hinders RFRA’s ability to protect the very people it was designed to help – religious minorities.
“These concerns are all the more prevalent when it comes to non-Western and Indigenous faiths,” the brief states. “In contrast to mainstream religions, which ‘already enjoy de facto protection’ through their ability to influence the political sphere … many minority faiths must turn to the courts for protection. But in doing so, these groups face a significant obstacle: explaining the nature of their beliefs and injuries to a judiciary that is mostly drawn from mainstream faith communities.”
The coalition is dismayed that the panel believes it cannot summon the authority to order the government to replace a one-and-a-half-foot stone altar, replace trees, or remove an embankment.
“It is difficult to understand the actions of the government and the courts except as willful ignorance and outright contempt for the tribes’ faith,” said Gene Schaerr, general counsel of The Protect The First Foundation. “For all Americans, there is a danger in allowing courts to ignore RFRA’s broad grant of authority to redress government interference with religious practice. The Ninth should hear this case to guarantee the right of free exercise of religion for all Americans.”
Federal Judge James Ho spoke truth to power this Tuesday when he switched from his prepared remarks about judicial originalism at Georgetown University Law School to speak up for the embattled scholar Ilya Shapiro.
Shapiro has begun his tenure as director of the law school’s Center for the Constitution on suspension. The reason? This libertarian-conservative had sent out a tweet questioning the racial lens that President Biden had imposed on his upcoming choice for a Supreme Court nominee. Shapiro criticized the president’s decision to only consider black women as potential nominees. Shapiro’s tweets included the inartful words “lesser black woman” in comparison to a male candidate of color that Shapiro considered the best possible choice. Shapiro apologized and deleted his tweets.
After pressure from activist groups, Georgetown placed Shapiro on administrative leave, consigned to the antechamber of the cancelled. Georgetown’s actions seem particularly unprincipled to many considering that one of its faculty had her speech rights stoutly defended by the university after she tweeted that supporters of Brett Kavanaugh’s Supreme Court nomination “deserve miserable deaths,” should be “castrated” and have their corpses fed to swine.
It is against this background that Judge Ho switched gears from his original speech and spoke extemporaneously about free speech and cancel culture before a crowd of law students and faculty.
Judge Ho spoke movingly of facing discrimination as a Taiwanese-American law student and young lawyer. But, Judge Ho said, “cancel culture is not just antithetical to our constitutional culture and our American culture … [it is] completely antithetical to the very legal system that each of you seeks to join.”
But that antithesis is becoming the rule in the academy. The search for an offense in a target’s words is turning into an academic reign of terror.
In another a case, in a law class exercise on Civil Procedure II, University of Illinois at Chicago law professor Jason Kilborn included – for the tenth year in a row – a hypothetical employment discrimination case that mirrors real-world tensions. This case involved the use of redacted racial slur and a redacted sexist slur. The actual words were not used in the exercise. For this crime, Kilborn lost his annual pay raise and was tasked to eight-weeks of sensitivity training with 20 hours of course work, five “self-reflection” papers, and weekly 90-minute sessions with a diversity “trainer.”
George Will wrote: “Could those who concocted this sentence ever recognize their kinship with the moral purifiers of Cambodia’s Khmer Rouge?”
At the very least, such persecution certainly justifies the use of an overused word, “McCarthyism.” The defenestration of innocent scholars is reaching obscene proportions. Judge Ho shows that the time of politely tiptoeing around such controversies is over.
PT1st will report on the First Amendment records of the three candidates most often mentioned as making up President Biden’s “shortlist” to replace Justice Stephen Breyer on the U.S. Supreme Court – Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia, Leondra Kruger, California Supreme Court Justice, and J. Michelle Childs, a federal district judge in South Carolina. In this piece, PT1st examines an opinion written by Judge Childs and compares it with a litigating position taken by Justice Kruger when she served in the Department of Justice.
Of the Justices appointed by Democratic presidents, Justice Stephen Breyer is probably the friendliest to religious claims. An article published earlier this week, for example, explained that Breyer voted in favor of religious liberty in nine of the last 13 religious liberty cases.
With Justice Breyer’s pending retirement from the Supreme Court, President Biden has the chance to pick a nominee who is as good or better than Justice Breyer on First Amendment issues. As Justice Byron White famously said, every new Justice makes a “different court,” even if she is replacing someone she largely agrees with. How might the newly comprised Supreme Court be a different court on the religious cases that so regularly come before the Court? At least with respect to one issue, the First Amendment’s ministerial exemption, the choice between Justice Kruger and Judge Childs could make all the difference.
The ministerial exemption, first recognized by the Supreme Court in 2011 in a case called Hosanna-Tabor v. EEOC, forbids the government from contradicting “a church’s determination of who can act as its minister.” In that case, then-Assistant to the Solicitor General Leondra Kruger argued that the First Amendment’s Religion Clauses have nothing to say about a church’s decisions with respect to its employees, a position that even the liberal Justice Elena Kagan considered “amazing” — and not in a good way. (You can listen to the exchange here, starting at 40:30.) Kruger’s position lost, unanimously. Earlier this week, in an attempt to distance Kruger from that argument, the former Solicitor General Donald Verrilli said that the call to make that (losing) argument was his alone.
If it’s true that Kruger was just following orders, then we don’t know how she’d rule on ministerial exception cases that might come before her. It is entirely possible that a Supreme Court Justice Kruger would have a more expansive view of the First Amendment’s protections than she argued for in Hosanna-Tabor as an Assistant to the Solicitor General. But really, we just don’t know.
What we do know is how Judge Childs applied the ministerial exemption in a case after Kruger’s unanimous loss. In a case called Yin v. Columbia International University, Childs found that a teacher at Columbia International University (CIU)—a “multi-denominational Christian institution of higher education dedicated to preparing world Christians to serve God with excellence”—was a minister and, accordingly, could not recover from her employer for alleged violations of civil rights laws.
We think that Judge Childs applied the ministerial exception correctly in that case. The teacher in that case, Yin, “required her students to pray together,” “integrated biblical materials inter her courses, and prepared students for ministry roles.” To Judge Childs, these clearly religious acts “weigh[ed] heavily … in favor of applying the ministerial exception.” Other factors, to be sure, weighed against finding that Yin was a minister. She was the Director of Teaching English to Speakers of Other Languages Program at CIU, a nominally secular title. And Judge Childs found that Yin didn’t understand herself to be a religious leader or a minister, notwithstanding her overtly religious activities. But Judge Childs gave those considerations less weight, looking more at what Yin did at CIU than anything else.
Only a few years later, a majority of the Supreme Court that included Justice Breyer decided Our Lady of Guadalupe v. Morrissey-Berru. In that case, the Court upheld Child’s understanding of the ministerial exception when it recognized that, for purposes of the ministerial exception, “[w]hat matters is ... what an employee does.” Judge Childs is to be commended for understanding the paramount importance of an employee’s actions long before the Supreme Court itself made that importance clear.
The position that Justice Kruger advanced in Hosanna-Tabor, namely that the Religion Clauses say nothing about the relationship of religious organizations with their ministers, differs sharply from how Justice Breyer voted both in Hosanna-Tabor and in Our Lady of Guadalupe. And the position couldn’t be more different from how Judge Childs applied Hosanna-Tabor in Yin. If Justice Kruger is the nominee, PT1st hopes that members of the Senate Judiciary Committee will question her to get to the bottom of her position on the ministerial exemption. In the meantime, the available evidence shows that Judge Childs will likely vote like Justice Breyer has voted, at least in ministerial-exemption cases.
Are we seeing the beginnings of a pivot from cancel culture to engagement culture?
Several major cancellations that before would already be done are, instead, frozen in mid-air. Spotify is visibly sweating bullets at the prospect of having to cancel Joe Rogan over Covid misinformation and racist slurs in the service of bad jokes. This can’t be an easy decision. Rogan’s podcast dwarfs the ratings of the most highly rated shows of the major television networks. And Rogan is a media giant because he is so different, exhibiting a naïve curiosity, a willingness to question anything and change his mind in the quest for the truth – and admit when he’s gotten something wrong.
Whoopi Goldberg, who made an offensive remark about the Holocaust, has been cast out from The View for a fortnight to reflect on her verbal crime, as if she were an out-of-control toddler in need of a time-out. Illya Shapiro, the Georgetown scholar who in one inartful tweet questioned President Biden’s racial filter for his Supreme Court nominee, is now under “investigation” by his putative employer, Georgetown University.
Maybe one or all will eventually be cancelled. But what if we instead turned to radical engagement? Why not have Whoopi Goldberg explain to Joe Rogan why a racial expletive told in jest from a white podcast host is still wounding? Why not have someone from the U.S. Holocaust Memorial Museum explain to Whoopi what was so offensive about her remark that the mass murder of Jews was “not about race”? Why not have CBS’s Dr. Tara Narula walk Rogan through his Covid claims and give skeptics something to think about?
This is not to say that there are no cancel-worthy statements. And companies, whether Spotify or Facebook, do have their own right under the First Amendment to drop any speaker they choose. But, as David French argues in a brilliant essay in The Dispatch: “I have never in my adult life seen anything like the censorship fever that is breaking out across America. In both law and culture, we are witnessing an astonishing display of contempt for the First Amendment, for basic principles of pluralism, and for simple tolerance of opposing points of view.” Those who speak for a living will, over the course of years, eventually say something stupid or offensive. The problem is that critics now eagerly await their missteps so they can hit the ‘cancel’ button and eject those whose views they don’t like.
As French points out, this tactic is now coming from the right as well as the left.
In some cases, the honest intent of cancellation is to impose a kind of cultural hygiene. The problem is that culture doesn’t work that way. Cancellation leaves silence and cancelled speech – especially if it is ugly – acquires a kind of outré glamor for the impressionable. Apologies are taken as evidence of guilt instead of honest remorse. Most of all, the public loses the opportunity to hear real discussions.
On the other hand, an engagement approach would be good for our culture. And not incidentally, it would create the kind of drama that would be good for ratings.
The Commonwealth of Virginia is breaking away from eight other states that support the state of Maine’s exclusion of religious private schools from a tuition-assistance program.
Carson v. Makin, pending now before the U.S. Supreme Court, raises the question whether the First Amendment’s Free Exercise Clause requires Maine to allow, or disallow, religious private schools to participate in a private-school tuition program for children in rural areas.
Maine argued before the Court that tuition-assistance funds can go to religious schools if those schools do not provide “sectarian” or religious instruction. A statement from Virginia’s Solicitor General Andrew Ferguson highlights the absurdity of this argument:
“Maine’s proposed distinction between impermissible discrimination on the basis of religious status and permissible discrimination on the basis of the religious use of funds is illusory and finds no support in the text of the First Amendment.”
Ferguson then quotes a 2020 Supreme Court opinion in a landmark religious liberty case, Espinoza v. Montana Dep’t of Revenue:
“[W]hether [the exclusion] is better described as discriminating against religious status or use makes no difference: It is a violation of the right to free exercise either way …”
Protect The 1st urges the Justices take a moment to read this crisp, succinct memo from Virginia as they make their decision.
Millions of people around the world were outraged when a Tennessee school district thoughtlessly banned the Pulitzer-Prize winning graphic Holocaust novel Maus on World Holocaust Remembrance Day.
We should take heart, however, that this action immediately reaffirmed the karmic law of the internet known as the Streisand Effect.
This phenomenon was named after the great singer-actress Barbra Streisand, who dispatched high-powered lawyers to issue legal threats and cease-and-desist letters against an obscure website that posted pictures documenting erosion along the California coastline. Among the 12,000 images posted by the California Coastal Records Project were aerial images of Streisand’s home. Claiming that merely including those images in a database somehow invaded her privacy, Streisand sought $50 million in damages. At the time, only six people had downloaded the images.
Streisand lost in court and was required to pay the defendant’s legal fees. In only one month, because of the publicity her lawsuit inspired, more than 420,000 people visited the website.
What is now happening with Maus is only the latest demonstration of the Streisand Effect: In a democracy, attempts at repression generate publicity. And nothing makes intellectual property shinier than trying to forbid it. Commands like don’t read this book!, of course, make you want to read the book. (By the way, don’t read our blog!)
Shortly after the school board in McMinn County, Tennessee, voted unanimously to ban Maus (first published in the Eighties) from its eighth-grade curriculum, The Complete Maus anthology hit No. 1 on Amazon’s bestseller list.
The Streisand Effect, however, only works against ham-handed attempts to stifle speech. The danger we face today is the censorship we cannot see. Such hidden censorship, whether by universities, governments, large social media platforms, or private parties – quietly tucks away speech deemed too upsetting to established truth. When that happens, we’re all harmed.
This image from Colorado State University is making the rounds on social media and in Reason Magazine.
This sign helpfully directs a student to the many offices and resources available to protect her or him from “a free speech event.” Either this sign was created with an astonishing lack of self-awareness, or the authors are fully self-aware of what they are saying and are bent on redefining “free speech” as a roaming threat to students’ well-being.
Whichever you choose, it is enough to make George Orwell spit out his nice cup of tea.
This image comes on the heels of the story about Georgetown University’s pending defenestration of Ilya Shapiro, the scholar who was today to assume a job as executive director of the Georgetown Center of the Constitution. As reported by journalist Bari Weiss, Shapiro posted a tweet a few days ago that criticized the racial and gender category President Biden set for his Supreme Court nominee. And as is characteristic of so many Twitter compositions, Shapiro blundered with his thumbs. He contrasted a male candidate he considers to be the best possible choice, Judge Sri Srinivasan, with anyone else, including, in his words, “a lesser black woman.” The blowback was immediate, and a mob quickly called for Shapiro’s relationship with Georgetown to be terminated.
To be sure, Shapiro’s tweet shows that the authors of the Colorado State University sign are not entirely wrong. Free speech between well-meaning people can sometimes hurt. That’s a risk we run in the fast, free exchange of ideas, especially in casual environments like Twitter.
But at Georgetown, one doesn’t have to be particularly well-meaning to be defended by the university, provided the speech comes with the appropriate ideological slant. As Weiss recounts, Georgetown professor Carol Christine Fair had her free speech rights affirmed after she tweeted that U.S. senators who supported Judge Brett Kavanaugh’s nomination to the Supreme Court “deserve miserable deaths” and that “we” should “castrate their corpses and feed them to swine.”
In the aftermath of this tweet, Georgetown vigorously supported Fair, noting that it allows ideas that “may be difficult, controversial or objectionable” from faculty members in their private capacity.
Shapiro, for his part, quickly deleted his careless tweet and sent an open letter apologizing for his inartful language. But even after Shapiro’s apology, the calls for his termination continued. As Weiss reports, “these days, sincere apologies do not function as expressions of regret but as confessions of guilt.”
Shapiro is now on leave while the university investigates his tweets. The ever-alert Foundation for Individual Rights in Education (FIRE) has brought 50 faculty members and higher-education leaders from across the ideological spectrum to Shapiro’s defense. But the overall lesson to be drawn from this story is that if you have views that go against the grain on campus, you had better be exact in every comment. A slip of the tongue or an inartful tweet can end one’s career. On the other hand, if your views are in line with the prevailing ideology, you can call for U.S. senators to suffer miserable deaths and castration.
Interestingly, Fair responded to questions about Shapiro by saying: “In general, I believe that the only response to speech one doesn’t like is more speech and I decry cancel culture on any side.” Although intemperate in her own language, Fair is laudable in her defense of the freedom of speech in the Academy.
Protect The 1st will follow Shapiro’s case, as well as the free speech rights of others – left, right and center.
Erik Egbert v. Robert Boule: Protect The 1st Tells Supreme Court to Uphold Bivens – Our Only Path to Upholding First Amendment Rights
Robert Boule, the owner of a bed and breakfast near the U.S.-Canadian border in Washington state, somehow engaged the suspicion of U.S. Border Patrol Agent Erik Egbert. The agent followed Boule as he drove into his inn’s driveway with a guest from Turkey, who had legally arrived in the United States the day before.
When Boule got out of the car, Agent Egbert asked to search the car’s interior. Boule refused and asked the agent to leave. Agent Egbert shoved Boule against the car and to the ground. The agent proceeded with his search, leaving Boule with back and hip injuries.
When Boule reported Agent Egbert to his superiors, Egbert filed meritless reports against Boule with state and federal authorities. (It probably didn’t help Boule that the name of his establishment is the “Smuggler’s Inn.”) Boule sued, claiming that Agent Egbert had violated his First Amendment rights by trying to shut him up with meritless accusations. Boule also claimed his Fourth Amendment rights were violated by the warrantless search of his car.
The Ninth Circuit Court of Appeals upheld Boule’s claims. Protect The 1st Foundation filed a brief on Wednesday evening asking the U.S. Supreme Court to uphold the Ninth Circuit’s ruling.
Nothing less than the ability of all Americans to continue to press their First Amendment claims against the government is at stake. A claim brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics (1971) is the only remedy for most Americans seeking redress for a violation of their First Amendment rights.
From the time of Magna Carta, the right to sue the Crown for a violation of one’s rights has been a basic principle of English law. Shortly after the American Revolution, U.S. federal courts recognized a common-law right of individuals to sue government officials for damages to remedy violations of foundational law. As English jurist William Blackstone noted, it would be an “absurdity in any system of positive law, to define any possible wrong, without any possible redress.”
Simply put, a right that cannot be enforced is not a right.
If the Court holds that Boule can’t pursue his First Amendment Bivens claim, it would shut the door on what is usually the only effective legal means for redress for the violation of one’s First Amendment right to report the bad behavior of a government agent.
For all these good reasons, Protect The 1st Foundation tells the Court it should let the Ninth Circuit ruling stand.
Two former Members of Congress and senior advisors to Protect The 1st hailed the introduction of a bipartisan resolution from Sens. Tim Scott (R-SC) and Dianne Feinstein (D-CA) to declare Jan. 23-29 National School Choice Week.
“As Senator Feinstein has said, school choice provides ‘hope for a better future to students by allowing them to choose schools that meet their needs,’” said Rick Boucher, who represented Virginia’s 9th district from 1983 to 2011. “School choice allows parent the full expression of the First Amendment, letting them educate their children according to cherished viewpoints and principles, while meeting high standards in state-required courses.”
Bob Goodlatte, who represented Virginia’s 6th District from 1993 to 2019, urged lawmakers not to overlook the important role played by religious schools.
“Schools run by religious organizations that meet every state course requirement deserve to be a part of the diversity of options that school choice brings,” Goodlatte said. “For millions of parents, these schools are a quality alternative.”
The Supreme Court on Wednesday held oral argument in FEC v. Cruz, a case that challenges a limit on the repayment of funds a candidate loans to his own campaign. Section 304 of the Bipartisan Campaign Reform Act (BCRA) and its implementing regulations impose a $250,000 limit on the repayment of such loans from donations contributed after the election. That restriction imposes a burden on core political speech, as Protect The 1st explained in our amicus brief filed last month.
Justice Kavanaugh recognized that the practical effect of the loan-repayment limit is to deter candidates from spending money before they can raise funds:
“It would seem to me that the law puts the candidate to a choice of spending your own money for a loan above $250,000 and forgoing any repayment for an amount above $250,000, so the choice is to spend that without any possibility of getting it back, or not spending it at all. And that seems to be, therefore, a chill on your ability to loan your campaign money.”
That burden on political speech is particularly damaging for a challenger who “can't rely on contributions early in a campaign and has to get his campaign off the ground,” as Charles Cooper, attorney for Senator Cruz, explained. Personal loans from the candidate are thus critical to the candidate’s ability to speak early in the election, Mr. Cooper said.
As PT1st explained in our amicus brief, that ability to speak early can be crucial to a challenger’s success. Challenger candidates usually lack the name recognition and donor networks possessed by incumbents. “A candidate who cannot spend and raise funds quickly, and especially early in the race, is unlikely to win an election,” PT1st wrote. “The loan-repayment limit thus burdens challengers by deterring them from raising money from one of the few sources that may be available to them early in their campaigns: a personal loan.”
While the FEC claims the law is about preventing corruption, several justices seemed unconvinced. Justice Barrett pointed out, “Senator Cruz says that this doesn't enrich him personally because he's no better off than he was before. It's paying a loan, not lining his pockets.” The FEC’s attorney conceded that a candidate who is repaid a loan is “certainly no better off than he was before the loan was made,” but argued that post-election contributors convey a financial benefit on the candidate by eliminating uncertainty about whether the loan will be repaid. Justice Barrett was undeterred, responding that in that respect, everyone who contributes to a campaign does the same.
Justice Alito agreed, saying he didn’t understand “why the repayment of this loan is a gift when the repayment of other loans is never considered a gift.” Justice Kavanaugh also agreed that this “is a loan, not a gift,” and asked why the existing limit on how much individuals can contribute isn’t sufficient to prevent corruption.
The justices are right that the loan-repayment limit doesn’t serve an anti-corruption interest; it wasn’t even designed to. As PT1st explained in our brief, the legislative history of the BCRA shows that the limit was likely designed to give incumbents an advantage over challengers. The Court “should not permit such self-interested protectionism by those already in office to infringe on the free speech rights of those who challenge them,” PT1st wrote.
Much of the questioning concerned whether Senator Cruz was ultimately challenging the constitutionality of the FEC’s regulation, not the underlying statute. The Court may hold on that ground that the three-judge district court that heard the case lacked jurisdiction, and that Senator Cruz’s challenge must be brought in an ordinary district court proceeding. However the Court decides, it is clear that the underlying burden on speech imposed by this regulation is well understood on the nation’s highest bench.
The oral argument for Shurtleff v. Boston – challenging the denial of a group whose flag prominently displays the Latin cross from accessing a city flagpole that was previously open to all other groups – revolved largely around two questions.
The city of Boston has an open policy of letting various groups fly their flags while holding events under the flagpole. Mathew Staver, the attorney for petitioner Camp Constitution, noted that for more than 12 years, the city exercised virtually no review of applicants seeking to fly their flag and hold their events on city property – until Camp Constitution made its application and Boston denied it permission to fly its flag. The U.S. Court of Appeals for the First Circuit upheld the city’s decision, ruling that the flags constituted government speech. The Supreme Court is now reviewing that decision.
Several justices asked: Would a reasonable person see the flag near city hall and conclude that Boston was endorsing Christianity?
Staver responded that the observer would view the celebration around the base of the flagpole and see it for what is: speech by private citizens, not the city.
Justice Samuel Alito asked the attorney for Boston what constitutes “government speech.” Justice Alito posed a thorny question:
“Suppose that it was a speaker’s platform in a park and they say you – anybody – can speak here, but you have to give us your speech in advance, and we’re going to exercise complete control over what you say. If we don’t like your speech at all, we’re going to reject it. If its got some things we don’t like, we’re going to edit it. Other than that, you can say anything you want subject to our complete control. That’s government speech?”
Alito summed up his view “that’s exactly what censorship is.”
Given that Boston allowed many groups of varying backgrounds to access the flagpole, the Protect The 1st amicus brief in this case stated that “this Court should reverse the First Circuit’s decision to make clear that the government may not evade the Free Speech Clause by engaging in precisely the kind of censorship that clause was enacted to prevent.”
Echoes of PT1st’s amicus brief were heard throughout the argument. The Court seems poised to hold that for speech on public property to be considered “government speech” – which does allow for viewpoint discrimination – the government must exercise robust control over messages. The government cannot just exclude viewpoints it disfavors by claiming its exercising control when it isn’t.
Another point from the PT1st brief that emerged in the discussion is the Justices seem to recognize that allowing displays of religious symbols on government property is not a violation of the Establishment Clause of the First Amendment.